JUDGMENT

Hon’ble V.K. Shukla, J.—Petitioners, who are 37 in number, have approached this Court with a request to issue writ, order or direction in the nature of mandamus to relieve the petitioners pursuant to the transfer order dated 11th July, 2013 and thereafter direct the respondents to permit the petitioners to join at their respective place of posting.

2. Brief background of the case is that each one of the petitioner have been initially appointed as Assistant Teacher and thereafter had been accorded promotion in consonance with the provisions as contained under U.P. Basic Education (Teachers) Service Rules, 1981. Petitioners submit that each one of them has been performing and discharging duties in their respective posting and thereafter petitioners claim that they have applied for inter district transfer from district Kaushambi to district Allahabad in the prescribed format. Petitioners submit that their request in question has been accepted as in the list, which has been so finalized, name of petitioners have been duly mentioned therein. Petitioners have stated that they were expecting that they would relieved but they have not at all been relieved on the premises that batch-mates of petitioners, who are working in Allahabad, are yet to be promoted on the cadre of Head-Master of Junior Basic Schools/Assistant Teacher of Senior Basic Schools and proceeding pertaining to their promotion is still ongoing, therefore, as the petitioners could not be relieved and could not be ensured their joining in district Allahabad. Petitioners at this juncture are before this Court with the prayer, as has already been quoted above.

3. Shri Anil Tiwari, learned counsel for the petitioners, submitted with vehemence that Rule 21 of U.P. Basic Education (Teachers) Service Rules, 1981 deals with transfer and same contemplates inter district transfer only on the request/consent of teacher concerned with the approval of the Board and, in view of this, it has been contended that such a condition, as has been sought to be introduced, after their claim has been considered, is an unjustifiable exercise of authority and is not at all subscribed by the rules. Further submission has been made that Rule 21 was amended by the 13th Amendment dated 5th December, 2011 wherein it was provided that a teacher, who had been accorded promotion to the higher cadre, can be transferred to other district only when teacher working in that district of the same batch had already been granted promotion to the corresponding district and the said rules in question has been amended by means of 15th Amendment dated 21st August, 2012 and therein the original Rule 21, which was amended by 13th Amendment, was restored and, in view of this, it has been sought to be contended that once in the said rules the only condition precedent is approval of the Board, then such a condition could not have been imposed and, accordingly, imposition of such condition is bad and steps should be undertaken for ensuring joining of petitioners in the district Allahabad.

4. Countering the said submission learned Standing Counsel as well as Shri A.K. Yadav, Advocate, Shri P.D. Tripathi and Shri B.K. Tiwari, Advocate contended that transfer is an incident of service and transfer order can be effectuated only with the approval of Board and once the Board has proceeded to fix the guidelines clearly mentioning therein that the transfer order shall only be effectuated only in the contingency when the batch-mates in the district, wherein transfer order has been intended, have already been accorded promotion and once accepted position is that in the district, wherein petitioners have been transferred, their batch-mates have not at all been accorded promotion and are not at all on the same footing, then no relief or reprieve can be given to petitioners, as has been prayed for, and writ petition is liable to be dismissed.

5. After respective arguments have been advanced the factual situation as is emerging